Thomas Paine, Scalia and the Originalists

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.⁶

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990) :

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

--Antonin Scalia

Reading Thomas Paine is stunning, when you think this  guy was writing 250 years ago, addressing issues so basic we are still struggling with them today.

Of course, some of those issues have receded, as most of us have got past the idea that mankind needs a king and hereditary monarchies to rule them and that the rights of kings and aristocrats to have so much power and wealth is God given and rightful.

But the idea of the importance of "stability" and "continuity" persists and controls us in very practical and important ways. To pick only the most egregious and obvious example, our Supreme Court still labors under the weight of the ideal of "originalism" which is to say the Constitution constitutes an immutable law, handed down by sacred "founding fathers" who spoke with one voice and of one mind and gave us the law, which is the original truth, Biblical in its constancy and all the answers are contained in it, if only we are wise enough to read and follow it.

Of course, Antonin Scalia revealed in his contorted opinion in Heller v DC, the absurdity of such a position. It was clear the gun loving Scalia, a devout Catholic who needed an inviable text to justify his pronouncements, turned to the 2nd amendment, which is about as unambiguous as any sentence in the entire Constitution, and the only place in that document where the authors took pains to explain the reason why they grant a right: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed."

Anyone reading this sentence who does not understand that "the people" here are specifically members of this "well regulated" militia, has got to be fooling himself. It is even more telling  the amendment's author was not content to simply leave it at "a militia" but deliberately put in "well regulated" with the clear meaning that these people bearing arms were under control of the state.

So how did Justice Scalia get over, under or around this clear barrier to a right to individual gun ownership, which is, obviously, where he was so determined to go?

The mental contortions and back flips Scalia performs are breath taking. If ever you want to see a man in the struggle to convince himself that black is white or that 2+2=5, this would be a good example to consider.

Consider Thomas Paine dis-articulating the argument that our current generation, in the 21st century, beset by assault rifles which can mow down 50 people within an instant, should be bound by any rule set down in at the end of the 18th century. 

"There never did, there never will, and there never can exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the 'end of time,' or of commanding for ever how the world should be governed, or who should govern it: and therefore, all such clauses, acts or declarations, by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void. Every age and generation must be as free to act for itself, in all cases, as the ages and generation which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies." [Italics added]

We have now a Supreme Court which is a peculiar amalgam of "originalists" like Gorsuch, Kavanaugh and Alito and a justice who rejects precedent because he sees the history of the law in this country as being unjust (Thomas) and one who vacillates between dismissing precedent when it suits him and clinging to it when it doesn't (Roberts.)

Stare decisis has for this Court become stare plasticity.  Scalia ignored generation after generation of prior decisions which specifically denied the Constitution bestowed an individual right to gun ownership.

Whatever we have, we have a court of unelected men who are faced daily with cases which fall between the cracks of the structure nailed together by the framers and who do, some would say, must, make up the law as they go along.

Just consider the righteous baker case: A Colorado baker receives an order from two gay men to prepare a wedding cake for their ceremony. He is a fundamentalist Christian who says his religion forbids him from sanctifying such a sinful union, and he refuses. The Supreme Court looks at the way the lower courts have decided the case and they point to the disparaging remarks made by the courts about the baker's religion and they find that the courts have erred in disrespecting this man's religion.

The baker also emphasizes how he was mistreated by the angry gay couple, which is somehow relevant to the Supreme Court.

Now it is the righteous baker who is the victim, not the gay couple.

It is a problem for today's originalist justices to look for guidance from those gentlemen in powdered wigs and silk stockings who wrote the Constitution and said "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

One might say: "Ah, there it is. The lower courts violated the baker's right to not bake that cake by prohibiting his free exercise of religion."

But then you have to deal with all those folks whose free exercise of religion forbade them from allowing people of color in their motels, which forbade serving colored people at their lunch counters, which instructed them to pass laws forbidding inter racial marriage.  What do you do when religious belief directs people to violate other parts of the Constitution?

For that you need a Court willing to make decisions unencumbered by direction from the grave.


And as current opinion and belief change, so must our Court. 
One of the most important issues ignored in our discussion of who should lead the Democratic Party in 2020 has been the issue of packing the Court.

The Evangelicals and a whole far right sector elected Donald Trump in no small part because they wanted a Court which would reverse Roe v Wade. 

The Dems didn't see that coming and still are blind to it.

Trump the Archie Bunker Type Bigot

BOTH
Everyone's a little bit
Racist, sometimes.
Doesn't mean we go around committing
Hate crimes.
Look around and
You will find,
No one's really
Color-blind.
Maybe it's a fact
We all should face.
Everyone makes
Judgments...
Based on race.

PRINCETON
Not big judgments, like who to hire or who to buy a newspaper from --

KATE MONSTER
No!

PRINCETON
No, just little judgments like thinking that Mexican busboys
Should learn to speak goddamn English!

KATE MONSTER
Right!

BOTH
Everyone's a little
Bit racist -- today,
So, everyone's a little
Big racist -- okay!
Ethnic jokes might
Be uncouth,
But you laugh because
They're based on truth.
Don't take them as
Personal attacks.
Everyone enjoys them --
So relax!

"Avenue Q"

What is a racist?

For many today, especially those born after 1970, a racist is basically anyone obnoxious, anyone you don't like.

That song from "Avenue Q"rang true for the baby boomers, but their children had never seen the type of racism boomer parents had taught them to abjure. 

During the 60's college students, among others, endlessly discussed racism, from the George Wallace, in-your-face-proud-of-it racism, which was so obviously venomous it was easy to reject, to the more genteel and hypocritical sort, the suburban upper class racism of people who marched in Civil Rights marches but did not want their white daughters dating Black boys, to the you-don't-even-realize-how-racist-you-are stuff, which Blacks or white self righteous types threw in the face of their parents: Oh, you're against reparations--that's SO racist.

Then there was Archie Bunker, from Queens, NY, at whom we laughed because he was so real, so unlike the other caricatures  on TV and in the movies who we all saw as cartoon characters. Archie, everyone knew, existed out there. 

That show aired in the 1970's, after the tumult of the 60's, after the big Civil Rights Act sunk the legal basis for institutionalized racism, but today's youth have never seen more than youtube clips or single episodes.

Archie is perfectly capable of making exceptions of certain Black people. He knows his Black neighbor, cunningly named George "Jefferson" and while you cannot say he likes the man, Bunker accepts the fact they are neighbors and they have to co exist and at times he actually accepts a point and gains a certain respect for Jefferson's intelligence. In fact, George Jefferson, the son of share croppers, is an energetic entrepreneur, who is making more money than Bunker.

https://www.youtube.com/watch?v=qHy6QCQW6Nw

Trump is an Archie Bunker.  He will embrace Black people on stage and use them, and claim to be their friends in one pitch, and then he turns around in the next breath and says we need more immigrants from Norway, not from those "shit hole" countries, which are Hispanic or Black.

And the fact is, for Trump, it's not really that these undesirable immigrants are Brown or Black; the thing he loathes about people from "shit hole" countries is they are poor. They are dirty and violent and an "infestation" of vermin. It's pretty much the same image all those blue blooded Brahmins of the 1920's peddled: Those horrible people were just so DIRTY. 

Clean White vs Dirty Brown

The worst crime for Trump is not being Black or Hispanic; it's being poor, and not just poor, but destitute. 
Destitute, wretched, powerless--Trump recoils from all that. 

Once it was the Italians and the Slavs

He really is the classic school yard bully. You remember that kid: He never picked on a strong Black kid or a tough Hispanic or a big Jew--he went after a timid, flaccid white kid with glasses, a nerd. He'd beat up that kid. 

Once it was the Chinese

It doesn't take four years in psychiatric residency to figure out what that Trump bully type is assailing. His fear of being seen to be as helpless or weak or "such a loser" as that wretch is so glaring. 

Once it was the Irish: NINA

And the crowds who cheer him on share that same antipathy for the same reason. These are the losers, who want to pound on the nerd to make themselves feel better. 

When you belittle Trump, and his basket of deplorables, you stoke those fears.

Amy's reaction to Yang

Clearly, you are not supposed to see some things on TV but during the debate, when Yang managed to bring the house down with some truly funny or adroit responses to some questions the camera angles captured Amy Klobuchar's reactions. 

When asked about what to do for children with disabilities,  he said you have to realize that there is a difference between economic worth and human worth. Commenting on the issue over which donors candidates should pursue, rich or humble, he said this is all about going after people with disposable income, but poor people never enter the discussion because they don't have any. 

And when asked a surprise question about Obama's comment that we'd all be better off if we had more women presidents and senators, Yang remarked he thought that was true because if you put a group of all men in a room without women around, within one hour they all  begin acting like morons--and the camera happened to catch Klobuchar grimacing: Written across her face was the thought, "I'm supposed to be the funny one up here, the one with the best lines, and he's stealing my spotlight."

Ms. Klobuchar clearly, visibly gets irate when she is upstaged.

The candidates are getting better. 

But:

Elizabeth Warren still cannot answer the question put directly to her: she keeps going back to her stump speech as if the audience isn't quite bright enough and she is still teaching a special ed class and if she just keeps repeating we'll finally get it. 

But she was asked why it had to be Medicare for all or nothing and she didn't answer; she just kept extolling Medicare for all, even though the question was, well, what if you don't  have a Congress willing to do that?  

And when asked why she insisted on paying for the college education of the millionaire's son she simply repeated we needed to end all student debt and make state colleges free. She didn't answer that "means testing" question.

Bernie actually answered this for her, saying Americans hate filling out forms and having to prove you are poor enough to qualify for free tuition would be nasty and cumbersome, and some years you may be too rich and some years, if you lost your job, poor enough. He could have noted the great universities of Europe (e.g. the Sorbonne) are free---of course they don't have to support big football programs. 

The debate process is helping, is beginning to reveal more and more about people we think we know, but who we do not know. 

One of the things about Yang and Styer is as good as they look now, on the stage, we all know, on some level, we really do not know them well enough. 

I can almost now understand why some women do not want to sleep with a guy on the first date--they just don't know enough about him, and they might like him for one night but then, after a second date, realize he's a Trump Republican and they just wish they'd never invested the time or effort in such a loser. 

Why We Lose: The Victimhood Culture of Democrats

Donald Trump was enjoying himself at his Michigan rally and, being in the backyard of John Dingell, the former Democratic Congressman, he remarked Mr. Dingell might be looking down from Heaven at him, and then paused and said, "Or, he might be looking up, you never know."

The reaction from his widow, and from Speaker Pelosi and I'm sure from the legions of the outraged on Twitter and Snapface or wherever was predictable:

"I’m preparing for the first holiday season without the man I love,” she [Debbie Dingell, his widow] wrote. “You brought me down in a way you can never imagine and your hurtful words just made my healing much harder.”

Speaker Nancy Pelosi said Thursday that there was nothing funny about what Mr. Trump said.

“What the president misunderstands is that cruelty is not wit,” she said. 'It’s not funny at all, it’s very sad.'"

And this is the trouble our side has: We are always the fragile flowers, ever so ready to become the victims, the hurt ones, the #METOO violated ones. We suffer from luxuriating in victimhood, in being helpless, unable to punch back, only able to weep and wail.

God, I am so tired of being in the beat-up camp.

It's good to be on the side of caged children at the Southern border, but let us not wish to be a caged child. Let us determine to wield the terrible swift sword.

There were all sorts of ways to respond to Mr. Trump:

• Mr. Trump suggests my husband may be in Hell for his life of sticking up for the little guy; all I can say is I would far rather join him there than spend one minute at Mar-a-Largo.
• Mr. Trump speaks from a stage at a rally in Michigan to his cheering fans who laugh at the idea my husband might be roasting in Hell. Fact is, those folks have spent their lives looking up; that's why they are so eager to hope for the same for others.
• Mr. Trump thinks he can come to my home state of Michigan and hold a Ku Klux Klan rally and dance on the grave of my husband. We'll find out in November who dances last, and who dances best. 

Or words to that effect.

Let us here and now  resolve:

1. No pictures of Democrats hugging, in grief, ever.

2. No statements of how hurt we are by something that moron says. 
Just practice rolling eyes and say, "The man considers himself a wit, and his hyena crowds roar with delight. These are the modern day equivalent of those crowds at the coliseum, roaring with delight at gladiators slitting each other's throats.  Patriots laughing at townspeople locked in burning churches."

3. Remind everyone at every opportunity: The man cannot look anyone in the eye--those little pig eyes just dart around in fear. Someday, if I get the opportunity, I'm going to hold up a mirror to him and we'll see if there's any reflection.

Truth Be Told: About that Impeachment

Donald Trump is a joke and a failed President, although he is a canny marketer.

But the Democrats are not good marketers.  As Don Draper might say: They have not told a compelling story.

The Democrats from Adam Schiff to Jerry Nadler to Chuck Schumer all have the same talking points:

1. They have to vote articles of impeachment because they have "sworn an oath to uphold the Constitution."

2. Donald Trump has tried to usurp the power of the legislative branch.

3. Donald Trump has tried to extort (or if you prefer "blackmail") a foreign leader to help him get re elected. 

But here's the problem.

1. I have a copy of the Constitution and nowhere in it can I find the clause or article or amendment Mr. Trump has violated. Exactly which passage is it that Mr. Trump has violated? If you say it's the "treason" clause, there isn't much there defining what treason is beyond taking up arms against the government, and clearly, for all the stupid and dangerous things Mr. Trump has done, he hasn't done that.

2. Clearly, by refusing to provide documents or witnesses to the House of Representatives Trump has denied their right to attempt to hold him accountable. But this would only matter if we can imagine what he has done is bad enough to remove him from office.  At most, he told Ukraine they were not getting the money Congress sent until they kissed Donald's ring and announced an investigation to help him win his election.  That's nasty, and it undermines a key ally Congress was trying to help, but many Americans will say, "It's up to the President to conduct foreign policy. True, in this case he wanted something for himself and he didn't see saving Ukraine was all that important, but just because Congress wanted to save Ukraine doesn't mean the President has to want that. That's his call. 
Who cares about Ukraine anyway? 
Putin says it's not even a real country.  When did Congress get the right to dictate foreign policy?" 

Or, the other response is:  
"Oh, that's just LBJ twisting arms. Politicians swap favors all the time--vote for the navy base in my state and I'll vote for food stamps for your state. Everyone, domestic and foreign, tries to horse trade.  
And everyone, from New Hampshire to California, from Israel to North Korea, tries to influence our elections, one way or another. 
 Bibi Netanhayu spoke before Congress trying to boost Trump."

Donald Trump has offended the Democratic members of the House of Representatives because he has not followed norms. He has conducted foreign policy to gain his ends rather than the ends the House was pursuing. 

But he was sent to Washington to break norms, to "drain the swamp" to act differently. That he is doing. It offends Democrats but elections are there to determine if he has offended a majority of the public. 

3. Extorting foreign leaders is not a crime, as far as I can see. 

We don't want our own President bought by a foreign government to pursue that nation's agenda for his own personal gain. 
But how many people care if our President tries to buy a foreign leader for his own personal agenda?  
True, he's using taxpayer money to do it, but when LBJ sent over billions to support Vietnam so he could win the war to win his election, how different was that? 

Before the 1968 election, Nixon learned of an impending breakthrough at the Paris peace talks which might have ended the war in Vietnam before the 1968 election.

Nixon needed that war to continue so that he could win the White House. Nixon was riding anti war sentiment toward victory.

So, when it looked as if LBJ was about to succeed in ending that war, Nixon conspired with Anna Chennault, a well connected Republican, to get the South Vietnamese to leave the talks, (promising they would get a much better deal from him if he were elected than the near abandonment they were facing from LBJ at that time.)

And Nixon succeeded in torpedoing the peace talks. The South Vietnamese walked out on the Paris talks, and the war continued right through the November US election, which Nixon won.  

As a result,  the war ground on for 6 more years with thousands more American casualties, 50,000 by war's end, not to mention the 2 million Vietnamese dead.

To my mind, THAT, was an  impeachable offense.
Or a hanging offense.

But the fact is, although the Dems appear to be playing at Impeachment as if it is non political and really a "trial" for "crimes." 
Unfortunately, they have not yet defined the "crime."  It's not burglary. It's not receiving a bribe.  It's not ordering torture of prisoners at Gitmo. 

It may be a crime to try to become king.  Rejecting Congress's powers and insisting the only legitimate power in our federal government is the President is offensive, but is it a "crime"?
As far as Mad Dog can discern, this is really a political move, a power grab: This guy refuses to work with Congress.
Even if the Supreme Court orders him to step down after a conviction in the Senate, he just might, being Donald Trump, refuse to do this. He might say: "Try and make me!"

Impeachment has always been political: Andrew Johnson was impeached for try to undo the outcome of the Civil War by destroying Reconstruction; Clinton was impeached because the Republicans hated him and thought they could play the sanctimony card, even though his accusers, in grand total, had had more affairs than he had. And now Trump.

Why not just say it?  He is an illegitimate President because he lost the popular vote.

A "trial" by definition, means the "judge and jury" listen with an open mind, having not decided until all the witnesses are heard and all the facts presented. 

But from the outset, Democrats have clearly made up their minds. The hearings were window dressing.

This charade of Democrats condemning the Senate Republicans for having prejudged the "case" before the trial in the Senate is such transparent blather. 

Has Schumer not made up his mind about how he will vote in a Senate "trial"? 

Just because you have the Chief Justice of the Supreme Court sitting there in a black robe, is there any doubt how the Republicans on the "jury" will vote? 

Is there any doubt about how the Democrats will vote? 

The fact is, Trump has once again out maneuvered the Democrats. His Tweet site now has a banner of Trump pointing at the viewer saying:  "This is not them coming for me. They  are coming for you. I just got in the way!"

He's not very bright. He's not very effective. But, oh, does he know how to market to that group of voters who love him. 

Spending Money on the Opioid Crisis

Today's Seacoast Sunday headlines a study done of the outcomes of government spending to try to stem the "opioid crisis."
It was a story produced by the Granite State News Collaborative, which meant it provided actual researched news--a rarity for our local "newspaper."

What it showed was that the "opioid crisis" is not a single problem but a web of problems.  
1/ The problem of death from acute opioid overdose.  For the past two years there have been about 470 overdose deaths in New Hampshire annually and as of October this year we stood at 312. This may mean we'll do slightly better this year, and that has been attributed to the wider availability of Narcan on EMT trucks.

Of course, as many of the EMT folks have observed, the same addict tends to be rescued three or four times in a week, and these front line folks ask what is the purpose of rushing out to save a person who is determined to repeat the same behavior, until they do it in a place nobody notices.

2/ The problem of ongoing addiction: While the number of ambulance runs can be counted and recorded easily enough, the number of opioid users is a more difficult thing to quantify because people tend to not raise their hands when asked who is engaging in illegal behavior. 

3/ The problem of assessing efficacy of intervention: for which there is a well established set of techniques, from the scientific point of view, but there is incentive for both government and the "vendors" they pay to claim success where there may be none, like the old "body count" data from Vietnam, which always showed we were winning that war.

Programs to treat addicts basically come down to replacing one addiction--heroin/Fentanyl with another, to methadone or suboxone which are drugs which allow patients to return to normal work and life activities. This is called "medication assisted therapy" or MAT, because calling it "replacement addiction" would not, presumably, be welcomed by the governor or the legislators. 

The National Institute of Drug Abuse posts this on its website:

According to several conservative estimates, every dollar invested in addiction treatment programs yields a return of between $4 and $7 in reduced drug-related crime, criminal justice costs, and theft. When savings related to healthcare are included, total savings can exceed costs by a ratio of 12 to 1. Major savings to the individual and to society also stem from fewer interpersonal conflicts; greater workplace productivity; and fewer drug-related accidents, including overdoses and deaths.

But consider the source:  Would you expect employees of the NIDA to post a statement that says: "Oh, nothing we are doing is helping much" ?


There are about 300 clients for these MAT programs in Littleton, NH, but no figure is give for the state, oddly enough. Given the 24/7 nature of the programs, and the number of hospitals and EMT services which are involved, although most of these not full time, it is entirely possible that more people are, if not making a living, at least profiting from the opioid crisis than are actually being saved by the response.

Last year, at a Rockingham County Democrats meeting, Mad Dog asked Tom Sherman, MD , the New Hampshire state senator,  what evidence he had that the money spent was actually doing anything important to address the problems of drug deaths or drug addiction. At first he said there were statistics to support the benefit but when pressed, he finally admitted he could not bring any to hand and he asked, "But what's the alternative? Just giving up on these people?"

Bubbles 

Of course, there were parents of people who had died from opioid drug overdoses int he audience and they stared hate across the room at Mad Dog, but undeterred, Mad Dog alluded to the graph from the National Institute of Health Institute for Drug Abuse which showed, very clearly, that as long as drug addicts remained in their treatment programs they were apt to stop using drugs, but as soon as they left the programs, they became recidivists. 

This is true for alcoholics, of course and for that matter, for diabetics and hypertension.  The graphs shown above are from the NIDA website and the point is, of course, that as long as the patients remain in treatment, they do well, but as soon as they leave the treatment programs, they relapse, in the case of addicts, to the use of opioids. 

But the question is: Are we prepared to spend as much money on programs for addicts as we are on ongoing therapy for diabetes and hypertension?

You knew it was coming, but Mad Dog simply must refer you to the best single exploration of drug culture ever done: the TV series "The Wire."  Most people simply cannot endure the reality of this fictionalized show and stop watching. But that's the rub: If we, as citizens, are unwilling to actually face reality, but would rather throw money at it like some street beggar just to make it go away, we will never make progress in solving the problem we refuse to actually face.